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Criminal - Jury - Questions From Jury

. R. v. Shaw

In R. v. Shaw (Ont CA, 2023) the Court of Appeal considers the propriety of the trial judge's response to jury questions:
[64] The legal principles applicable to answering questions from a jury are not in dispute. A question from a jury indicates that the jury needs help. A question from a jury usually concerns an important point in the jury’s reasoning, identifying an issue on which they require direction. It is an indication of a particular problem the jury is confronting – on which they are focused. Although jury instructions must be read as a whole, courts have recognized that answers to jury questions will be given special emphasis by jurors. As a result, a trial judge has an obligation to fully and properly answer a question posed by the jury. A complete and careful response is necessary even if the subject-matter of the question has been reviewed in the main charge: R. v. Grandine, 2017 ONCA 718, 355 C.C.C. (3d) 120, at para. 62; R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at pp. 528-30; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 95; R. v. J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 34.


[71] On appeal, the Crown relied on this court’s decision in R. v. MacKenzie, 2020 ONCA 646, 395 C.C.C. (3d) 421, to argue that the answer provided was sufficient. In my view, MacKenzie does not assist the Crown.

[72] I summarize the decision in MacKenzie in some detail, given its centrality to the arguments on this ground. MacKenzie was a sexual assault trial. The central issue in dispute was proof of non-consent.[5] The complainant had consumed alcohol prior to the alleged assault. There was disputed evidence about her level of intoxication. But it was common ground that the complainant’s level of intoxication was relevant to assessing the credibility and reliability of her account, as it was relevant to her memory and as context for assessing her actions during and after the sexual contact. The jury heard evidence that blood samples were taken from the complainant as part of her sexual assault examination. They also heard evidence that such samples are typically sent to the Centre for Forensic Science (“CFS”) to test for drugs and/or alcohol. No evidence was led at trial about whether the samples taken from the complainant were actually sent to the CFS or tested for drugs or alcohol levels. In the main jury instruction, the trial judge included instructions on the absence of hospital records or testing to show her blood alcohol level at the time of the offence. In giving this instruction, he underlined that the burden of proof is at all times on the Crown to prove the elements of the offence beyond a reasonable doubt and alerted the jury to the absence of evidence that could affect their assessment of the complainant’s state of intoxication at the time of the sexual contact.

[73] In MacKenzie, during deliberations, the jury asked two questions together: “Was [the complainant’s] blood/alcohol ever tested/taken? If so, why wasn’t it presented as evidence?” The trial judge’s answer, which this court found to be “responsive and correct”, answered the factual question that there was no evidence that the complainant’s blood alcohol level was tested, repeated his instruction that the absence of evidence could impact on whether the Crown had met its onus, and told the jury it must decide the case on the evidence presented, and not speculate about why evidence was not called: MacKenzie, at paras. 48-58.

[74] In this appeal, the Crown argues that the first question in MacKenzie was the “what” question and the second question was the “why”, and that the trial judge in MacKenzie repeating the instruction that an absence of evidence could impact on whether the Crown had met its onus was only in response to the first question – the “what” question. The Crown argues that this case only has a “why” question, like the second question in MacKenzie – “why” wasn’t certain evidence led. Based on separating the two questions from MacKenzie, and isolating portions of the response, the Crown argues that it was not necessary in this case to reiterate to the jury that a reasonable doubt may arise from an absence of evidence.

[75] I do not agree. In my view, the questions in MacKenzie cannot be viewed in isolation in the manner the Crown proposes. As in this case, the questions posed by the jury in MacKenzie raised a concern about gaps in the evidence and why the Crown may not have called certain evidence. Indeed, repeating the instruction that reasonable doubt may arise from an absence of evidence was not responsive to either of the questions in MacKenzie as read literally. However, the trial judge in MacKenzie recognized, based on the evidence and issues at trial, that the jury questions raised a concern about a gap in the evidence. That is why a recharge on the relationship between a gap in the evidence and reasonable doubt was required. In my view, MacKenzie supports the conclusion in this case that, where the jury asked a question about why corroborating evidence was not called, a full answer required not only instructing the jury not to speculate about why particular evidence was not called, but also a reiteration of the principle that reasonable doubt can arise from the absence of evidence.

[76] In the circumstances of this trial, a full and correct response to the question posed by the jury required two elements: first, an instruction to the jury not to speculate about why a witness or witnesses were not called; and second, an instruction linking their concern about absence of corroborating evidence to the burden of proof and the principle that a reasonable doubt may arise from the absence of evidence. In substance, this is the instruction the defence requested at trial, but for purposes of balance, with the full Lifchus instruction, rather than isolating the absence of evidence aspect of Lifchus. The trial judge gave the jury the first instruction, but failed to give the second.

[77] The trial judge’s failure to fully and correctly answer the jury’s question was prejudicial to the appellants. The Crown’s case depended on the evidence of Mr. Poyser. There were serious challenges to Mr. Poyser’s credibility. The Crown sought to support Mr. Poyser’s credibility by relying on other evidence that it argued provided corroboration. The defence challenged the reliability of the corroborative evidence and pointed to gaps in the evidence. The absence of evidence was a significant plank of the defence case for all of the appellants as argued to the jury. The jury’s question showed that they were concerned about gaps in the evidence. The failure to reiterate that reasonable doubt could be based on an absence of evidence was prejudicial in the circumstances.
. R. v. P.K.

In R. v. P.K. (Ont CA, 2023) the Court of Appeal considered how a trial judge should respond to questions posed by a jury, here for a re-reading of evidence:
[28] When a trial judge receives a request from the jury for a reading of certain parts of the evidence, the trial judge must provide an answer that is both responsive to the question, and complete and accurate. A full and accurate answer to the question will sometimes require that the trial judge go beyond the four corners of the jury’s request, so that the jury will have other parts of the evidence which materially weaken, explain, or qualify the evidence specifically requested by the jury: R. v. Olbey (1977), 1977 CanLII 2060 (ON CA), 38 C.C.C. (2d) 390, per Martin J.A., at 402; aff’d, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008 at 1027.

[29] The manner in which the trial judge chooses to provide the complete and accurate response to the jury’s question is a matter for the discretion of the trial judge: R. v. Mohamed, 2018 ONCA, 966, at para. 279. Sometimes a re-reading of other parts of the evidence will be necessary, other times summaries of that evidence may be appropriate, and in still other situations, reference by the trial judge to the existence of other evidence and the availability of a read back of that evidence may suffice. Combinations of these methods can also be used.

[30] Practical considerations are important. This jury was in the middle of its deliberations. Long delays while counsel scour through extensive testimony for bits and pieces of the evidence which may have relevance to the question posed by the jury is not conducive to effective jury deliberations. While expediency is never justification for not providing a jury with a complete and accurate answer to the question, concerns about unduly interfering with the jury’s deliberations are properly taken into account by the trial judge when deciding the manner in which to respond to the jury’s question.

[31] Because the manner the trial judge uses to provide the full and accurate answer to the jury’s question depends on the specific circumstances, the position taken by counsel at trial is important. In this case, there seemed to be a consensus that it would be difficult and time consuming to go through the extensive cross-examination to find and isolate exact references in the cross-examination that touched on the hypotheticals. When the trial judge expressed that concern, defence counsel, a very experienced criminal litigator, suggested that if the specific parts of the cross-examination could not be readily located, that the trial judge should indicate to the jury that there were areas of the cross-examination that touched on the hypotheticals which could be read to the jury if they so wished. The trial judge followed counsel’s suggestion.

[32] The trial judge’s decision to proceed in the manner suggested by defence counsel, and concurred in by the Crown, did not prejudice the appellant. In argument, counsel for the appellant took the court through lengthy extracts from the cross-examination of Mr. Frappier in an effort to demonstrate material deviations between Mr. Frappier’s evidence-in-chief and his cross-examination. With respect, that effort did not succeed.


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Last modified: 21-02-24
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